The Aim of Public International Law

By Aron Mifsud-Bonnici

The aim of international law is to monitor the behaviour between states since where there exists a community of states, the maintaining of law and order becomes essential. A state will, as a general rule, do its utmost to act within the confines of the framework of rules which make up international law. Any state disregarding these general principles of peaceful and cooperative cohabitation between states runs the risk of incurring the disapproval of the fellow states in the community. Such disapproval will hardly ever limit itself to a “tag” of bad reputation, but could even lead to severe consequences. Professor J.G. Starke defines international law as

“that body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, an therefore, do commonly observe in their relations with each other, …”

Professor Starke also includes the rules governing international organisations: their functioning, their interrelation, and their relation with states and individuals. To be included are certain rules relating to individuals and non-state entities whose rights or duties involve the international community. Indeed, although traditionally it was the state which was the subject of international law, nowadays, international organisations and, to a certain extent, the individual can hardly be ignored. The proliferation of international organisations dates back to the post-war period where there was the creation of international organisations dealing with various aspects of internal life. Once these organisations are given their own personality it is common for them to enter into relations with states themselves. They became so important that international law became concerned with their behaviour, and the law of international institutions became thus a specialised branch of the law.

As regards the position of the individual in international law, one will note that in classical international law the individual enjoyed no locus standi. There was a contrast too sharply drawn between the state and the human beings who compose it. Rousseau, for example, treated states and men as things of a different nature between which no true relation could be fixed and consequently he affirmed that “a state can only have for enemies other states, and not men.” (Contrat Social, Bk.I, cap.4). It was the state itself which was concerned with regulating the individuality of man and, before an individual could bring about a claim against a state, it was imperative that he or she convince his or her state to forward the case.

This is no longer so today as international law is increasingly becoming concerned with the predicaments of the individual. It was thus that a whole branch of humanitarian law has developed: giving the individual a place within the international framework. Today, jurists and international bodies themselves cannot ignore this fact. The Revised Statement of the Foreign Relations Law of the United States, issued in 1986 by the American Law Institute, describes international law as dealing with

“the conduct of states and of international organisations, and with their relations inter se, as well as some of their relations with persons, whether natural or personal.”

The fact that the arms of international law are far-reaching is evident from the very preamble to the Charter of the United Nations which came into effect on the 24th of October, 1945, after representatives of sovereign states had convened in the City of San Francisco. It states:

“We the peoples of the United Nations determinedto save succeeding generations from the scourge of war, …to reaffirm faith in fundamental human rights, …

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

to promote social progress and better standards of life in larger freedom …”

Various factors have contributed to the system of international law which we have today. Indeed, this system is not a static one, but is continually evolving so as to meet the needs of the ever-changing situation in the international community. Traditionally, the primary aim of international law was to develop a harmonious rather than an equitable system of international relations. Nonetheless, the law now shows signs that it is struggling to safeguard that, objectively, justice be done between states. The concept of justice, up till then, fell mainly within the realms of municipal law. This relatively recent trend is manifest even in the terminology being used in international institutions such as the International Court of Justice.

One of the main factors which force international law to mature is the propagation of states. The state, in fact, as is obvious from the definitions reproduced above, is a legal person recognised by international law and a prime actor in disputes of an international nature. The Montevideo Convention on Rights and Duties of States, signed on the 26th of December, 1933, provides that for a state to be considered a person of international law, it should manifest the following prerequisites:

a permanent population;

a defined territory;

a government; and

a capacity to enter into relations with the other States.

After the second World War, with de-colonisation, the system had to change drastically to adjust itself to control an augmented number of sovereign states. Indeed, de-colonisation contributed most to doubling the number of states adhering to the United Nations from its genesis to the present day.

In the last thirty years or so, we have seen industrial technology developing to an extent that the states’ relation has also been affected. In fact, technological growth which is of an international character, falls within the realm of international law. This is manifest in the development of the doctrine of the Continental Shelf. In 1945, the Truman Proclamation on the Continental Shelf was a result of the U.S. President being made aware of immense resources of energy which could be found off the coast of North America. This unilateral proclamation claimed the right to exploit these resources which lay outside the U.S. territorial sea. This resulted in other states adopting a similar attitude, thus changing the law or possibly even creating it anew. What followed was the first U.N. Conference on the Law of the Sea, wherein a convention on the Continental Shelf was adopted. It is interesting to note that at the time it was considered that the ultimate technological limit for sea-bed mining was a 200-metre depth which, although currently unavailable, was foreseen. Envisaging further technological development, the term “continental shelf” in Article 1 of the Continental Shelf Convention included:

“… the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; …”

Therefore, it is evident that the limit can be stretched as technology develops further. With the creation of multinational companies, operating in various states, there came into being a new source of revenue. Indeed, these funds which were being generated were so exorbitant that these were far beyond the means of the very states which hosted them. It appeared, therefore, that these multinational companies were themselves controlling the technology and that thus the need was felt that these companies be the subject of control by international law. Many became aware that unless there existed a certain measure of fair distribution of the revenues of technology, then developed states would have exclusive domain over technology to the detriment of newly-emerging states. It may also be considered, therefore, as a problem of use and allocation of global resources. This problem must be classified under two general headings, namely, “Sharing the Common Heritage” and “Equity in Distribution”. Sharing the common heritage is concerned with such resource areas as ocean space, water basins and rivers, and, to some extent, the atmosphere and the general global environment. These areas give rise to the kind of problems associated with property and territorial rights, and involve such questions as access and transit, allocation of exploitation rights, responsibility for conservation, and so on. The second broad heading is concerned with problems of exchange and transfer of goods and services. Under this heading Professor Oscar Schachter, in Sharing the World’s Resources, delineates four major questions:

the pricing and supply of basic raw materials;

the sharing of technology;

“sovereignty over natural resources”; and

world food security.

In trying to solve these problems, consideration is given for more equitable distributive arrangements, as, for example, limits on monopolistic (or oligopolistic, for that matter) practices, a “just” price for oil, regulation of contracts for the purchase of technology, and control over foreign investment. In this field of technology and its sharing (together with the apportionment of its produce) the hectic activity of the human race is unmistakable and, therefore, it comes as a surprise to no one that international law is unrelentingly playing a vital role.

There is nothing to suggest that international law is curbed by a limited spatial jurisdiction. Indeed, Resolution 1721(XVI) adopted on the 20th of December, 1961 by the General Assembly of the United Nations embraces the opinion that

“International law, including the Charter of the United Nations, applies to outer space and celestial bodies.”

As in the case of the Continental Shelf, most surely this relatively new area of human activity will create disputes and, it is therefore essential that international law develops to meet the new sophistication of human activity. Outer space is often equated, by way of analogy, to the high seas but, according to Professor Brownlie, “such a category is not a source of many precise rules.” And, therefore, as human activity in outer space increases and technology develops to solve the new problems which arise, international law will have to develop further. It was along these lines, in fact, that in 1967 was signed the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies. Article 1 of the said Treaty contains principles of sharing and of the common good when, inter alia it states that

“The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.”

Another important catalyst in the development of international law is telecommunications of a global nature. In fact, one is today capable of witnessing an event as it happens thanks to technological developments in the field of satellite telecommunications. International law is concerned with interpreting state practice and, therefore, one will become immediately aware of a problem: since there is instant transmission there can be no digestion of the news before transmission. Classical international law required the element of duration so that a particular practise could become part of customary international law. To a large extent this element consisted in a period of time during which a state could become aware of another state’s practise. This obviously had to change with the advent of telecommunications since states now have immediate access to state practice. This situation led to what Professor Cheng describes as “instant customary law.”

On many occasions it is a particular event which brings about changes in international law. The sinking in New Zealand waters of the Greenpeace vessel “Rainbow Warrior” by French agents in 1985, and the trial and conviction of the agents by the New Zealand judiciary showed how shaky is the alleged doctrine whereby one state’s agents are exempt from prosecution by way of exception to states’ duty not to perform security activities on the territory of another state in time of peace. Another instance was the United States air-forces’ bombing of targets on Libyan territory in vengeance of alleged terrorist activities directed against U.S. citizens. This unilateral action posed questions on the extent of the right of self-defence under international law and on the doctrine of due proportionality of action performed in retaliation. The Convention on Early Notification of a Nuclear Accident or Radiological Emergency and the Convention on assistance in the case of such emergencies which were adopted at Vienna on the 26th of September, 1986, were the consequence of the unfortunate accident earlier the same year in the Chernobyl nuclear power plant, in Ukrainian territory. It was thus that international law provisions on nuclear safety strode forward.

The greatest expansion of international law took place in the nineteenth century due to various causes such as the rise of powerful new states, the growth of European civilisation overseas, the modernisation of world transport, and new inventions of civilian or military implementation. Since then, in our century, it has grown without repose and is claiming to reach “into almost every corner of the activities of the human race.” International law is today called upon to find new policies in the field of energy resources and production, in general scientific research, in international trade, in protecting the environment, in the control of Earth’s population, in international protection of data and intellectual property and in a myriad of other issues. The “intrusion” of international law into these fields was a natural consequence of the increasing interdependence of states, and of the increased interrelation between these states, brought about by a technological evolution which made it possible for hurdles of time and space to be overcome.